Laurence Tribe

The nation’s second-most powerful court grappled Tuesday with the intractable and potentially catastrophic problem of climate change, weighing whether constitutional questions surrounding President Obama’s climate change regulations should trump the moral obligations of upholding a plan to curb global warming...Among the most prominent opponents of the plan is Laurence H. Tribe, a constitutional authority who was Mr. Obama’s mentor at Harvard Law School. “This action by the E.P.A. is impermissible,” Mr. Tribe told the court. Judge David Tatel, an Obama appointee, appeared to disagree. He likened the rule to the Americans With Disabilities Act, in which the federal government set standards for states to make public spaces accessible to people with disabilities, and supplied states with federally devised plans for doing so. Tribe pushed back at that comparison. “Imagine if Congress had been unable to pass the Americans With Disabilities Act, as it was unable to pass cap-and-trade, and if instead that same agency told states they had to each pass a mini-A.D.A., and said if they don’t, we will use executive authority to put it into place?” he said.

The pitched battle over President Obama’s signature climate change policy, which is moving to the courts this week, carries considerable political, economic and historical stakes. Yet its legal fate, widely expected to be ultimately decided by the Supreme Court, could rest on a clerical error in an obscure provision of a 26-year-old law. That error, which left conflicting amendments on power plant regulation in the Clean Air Act, will be a major focus of oral arguments by opponents of Mr. Obama’s initiative when the case is heard on Tuesday in the United States Court of Appeals for the District of Columbia Circuit...The judges have allocated four hours to hear the arguments, rather than the usual one or two. The chief judge of the court, Merrick B. Garland, who is also Mr. Obama’s Supreme Court nominee, has recused himself. Adding to the drama will be the presence of Mr. Obama’s mentor at Harvard Law School, Laurence H. Tribe, who will argue against the climate plan on behalf of the nation’s largest coal company, Peabody Energy.

An op-ed by Laurence Tribe. In the early days of our nation, it was a crime to teach slaves to read. And through the first half of the 20th century, segregation funneled their descendants into inferior schools. Like the ugly attempts to disenfranchise African Americans through so-called literacy tests calculated to make them seem illiterate, these efforts were a perverse tribute to literacy’s power, which was recognized by the many people of color who fought so hard, against the odds, to educate themselves. Now, at least in theory, literacy is universally regarded as a human right. Every state makes K-12 education mandatory, and basic education has been recognized unanimously by the Supreme Court as “necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence,” to quote what Warren Burger, appointed chief justice by Richard Nixon, wrote in 1972. Yet as a carefully crafted lawsuit filed this month by seven Detroit schoolchildren reveals, deliberate indifference to public schools in already disadvantaged communities means that many children of color still do not receive an education — at least not an education that will prepare them to participate effectively and intelligently in our system.

Jamarria Hall can’t stomach walking into his high school on Detroit’s east side some days. The classrooms are hot, water fountains don’t work and only 2.2% of students last year achieved college-ready scores in reading and English...A federal civil rights lawsuit filed on Tuesday aims to challenge Hall’s educational system by asserting a constitutional right to literacy, in what attorneys say is the first legal challenge of its kind in the US. The 133-page complaint says the state of Michigan has disinvested in education in Detroit so much that children lack fundamental access to literacy...Harvard constitutional law professor Laurence Tribe, who is not involved in the litigation, said he expects the lawsuit will make history, “much as Brown v Board of Education did”. “The legal theory underlying the suit is both creative and rock-solid,” he said, “and Mark Rosenbaum’s legal team is nothing short of extraordinary.” “If you think of Brown v Board as one shoe that dropped, this is the other shoe,” he said, “because though it eliminated, technically, inferior schools for blacks, and eliminated de jure segregation, it didn’t achieve one of its basic goals. And that is a decent educational opportunity for all kids, regardless of race, regardless of class, regardless of geography. That’s become a more elusive goal.”

...Climate change, Mr. Obama often says, is the greatest long-term threat facing the world, as well as a danger already manifesting itself as droughts, storms, heat waves and flooding. More than health care, more than righting a sinking economic ship, more than the historic first of an African-American president, he believes that his efforts to slow the warming of the planet will be the most consequential legacy of his presidency...Another critic, Laurence H. Tribe, likened the rules to “burning the Constitution” — a charge that might have stung, since Mr. Tribe, a liberal constitutional scholar, was a mentor to Mr. Obama at Harvard Law School. Mr. Obama dismissed the criticism as the voice of Mr. Tribe’s client, Peabody Energy, the nation’s largest coal company, which filed for bankruptcy protection in April. “You know, I love Larry,” he said, but “when it comes to energy issues, Larry has a history of representing fossil fuel industries in big litigation cases.”

Differences aside, Donald Trump and Senate Republicans are strongly united on one issue — ideological balance on the Supreme Court. While Democrats are pushing the GOP-led Senate to confirm Supreme Court nominee Merrick Garland by the end of President Barack Obama's term, Majority Leader Mitch McConnell, R-Ky., has been resolute in blocking him, saying the next president should fill the high court vacancy. Republicans maintain it's a winning political strategy in a year when some GOP rank and file are struggling with reasons to vote for their nominee. ... Friends of Garland point out that he went through another lengthy confirmation delay when his appeals court appointment was held up for 19 months. He was later confirmed in 1997 on a 76-23 vote. "He has given no sign of being frustrated," said Laurence Tribe, a Harvard Law professor and longtime friend to his former student.

One of the leading liberal lights of American law now says the “IRS is engaged in unconstitutional discrimination against conservative groups and must be halted.” To be clear, Harvard prof Laurence Tribe is a convert: Early in the week, he sent out a tweet dismissing the idea of an IRS scandal as long-debunked. But, as the Cato Institute’s Walter Olson noted at Overlawyered, for once social media actually shed light on a dispute: Others asked Tribe to read this month’s DC Circuit Court of Appeals ruling against the IRS in the case — and he did.

The unique American right to privacy – the Constitutional right to be “secure in their persons, houses, papers, and effects” birthed as a direct response to the British crown’s unfettered “general warrant” rights to search colonial homes is so fundamental today that nary a politician will seek to question it. The same can be said for our First Amendment’s freedom of speech and the Fifth Amendment’s guarantee of equal protection. This is what makes so amazing how the FCC might be thumbing its nose at all three core principles in its latest “privacy rulemaking.” And the noting of this came in a major broadside delivered by the most revered constitutional scholar of the day – Harvard Law School’s Laurence Tribe. In a major speech before the Media Institute, Tribe says that the effort by the FCC to strictly regulate some Internet companies’ privacy practices and not others is an affront – one that will not survive constitutional scrutiny.

The can of worms opened with a teasing tweet from @tribelaw, the Twitter account of Harvard Law School professor Laurence Tribe. Tribe, a frequent social media critic of Republican presidential candidate Donald Trump, disclosed that Trump had called him for legal advice 20 years ago. Saying he kept his notes from the call and implying he might release them, the constitutional law scholar mused whether his discussion with Trump in 1996 would fall under the attorney-client privilege. (Tribe's tweet came in response to Democratic consultant Bob Shrum, who called Trump a blowhard — a charge with which Tribe appears to agree.)

A quarter century after the end of the cold war, Donald Trump has proposed restoring ideological tests for immigrants, a move that legal experts say raises a tangle of practical and even constitutional concerns. In a speech on Monday devoid of policy details or specifics, the Republican nominee called for the “extreme vetting” of immigrants, including a screening process to root out applicants who do not uphold “American values”. Laurence Tribe, a liberal constitutional law professor at Harvard University, said Trump’s proposal was “a nonstarter”. “The proposal ... is very deeply un-American, is probably unconstitutional, would almost certainly fail in Congress and is another example of Trump having no idea what he’s talking about,” he said. Restricting immigrants on the basis of ideology is anathema to American values, Tribe argues. Freedom of speech and religion are enshrined under the first amendment of the constitution and the enduring symbol of freedom is the Statue of Liberty welcoming weary immigrants to its shores.

Khizr Khan, the father of a Muslim-American soldier who was killed in the Iraq War, accused Donald Trump of not reading the Constitution. Rep. Chris Collins, a Trump supporter, turned the claim around on Hillary Clinton. During an interview on MSNBC, Collins made assertions about Clinton’s views on the Constitution in the context of the Gold Star father’s Democratic National Convention speech. "He stood next to Hillary Clinton, who has already said she's going to wipe out the Second Amendment..."...We spoke to constitutional law experts Laurence Tribe from Harvard Law School and Matthew Steilen from the University at Buffalo about Collins' claim. In this case, they said executive actions and orders typically do not directly contradict the 10th Amendment.

Senator Claire McCaskill set off a legal debate today when she told MSNBC that Donald Trump should be investigated for potentially violating the Logan Act...Laurence Tribe, a constitutional law professor at Harvard Law and former mentor to President Obama, sided with McCaskill on Twitter: Trump’s “jokes” inviting an adversary to wage cyberwar against the U.S. appear to violate the Logan Act and might even constitute treason. In a follow-up comment to Washingtonian, Tribe elaborated that, while the law has never been “formally interpreted” by the Supreme Court, “it obviously applies to Trump’s overt encouragement of Russian interference with this November’s presidential election.”

For Harvard law professor Laurence Tribe, not only do Donald “Trump's "jokes" about Russia amount to "inviting an adversary to wage cyberwar against the U.S.," but they also "appear to violate the Logan Act and might even constitute treason,” he tweeted Thursday...The latest tweet from the liberal legal giant whose name has been floated as a Supreme Court pick comes after Trump and his campaign brushed aside the backlash over his remark. The Republican nominee himself telling Fox News that he was "being sarcastic." “Imagine what our 1st president would've said about a candidate inviting a foreign power to intrude into a US election for the 45th president,” Tribe previously tweeted Wednesday, adding that he “must have been hallucinating” at hearing Trump’s calls for Russian hackers to infiltrate Democratic presidential nominee Hillary Clinton’s emails.

An op-ed by Noah Feldman. A group of high-profile legal minds wants the Supreme Court to eliminate super-PACs, the advocacy groups that can raise and spend unlimited amounts of cash to praise and attack political candidates. But instead of asking the court to overturn the 2010 Supreme Court case that lifted many restraints on political spending, Citizens United v. Federal Elections Commission, they plan to ask the justices to overturn a lower court decision that interpreted Citizens United to open the door to the super-PACs. The strategy is worth pursuing...Why attack SpeechNow instead of challenging Citizens United directly? The answer is subtle, and it reflects the legal expertise of the group, which includes my senior Harvard Law School colleague Laurence Tribe, the unquestioned master of the dark arts of shaping doctrine through litigation.

A powerhouse legal team representing a bipartisan group of congressional members and candidates is unleashing a new effort to overturn the case that birthed super PACs, part of a novel strategy to rein in the big money that has poured into campaigns since 2010. Their immediate target is not Citizens United v. Federal Election Commission, the polarizing decision handed down by the Supreme Court that year. Instead, they are going after a lesser-known case decided by U.S. Court of Appeals for the D.C. Circuit just two months later: SpeechNow.org v. FEC ...A team of attorneys including Laurence Tribe, a professor of constitutional law at Harvard University, and Richard Painter, who was the chief ethics lawyer for former president George W. Bush, are taking aim at SpeechNow.org with a new complaint they hope will reach the Supreme Court before the 2020 elections. The thrust of their argument: The lower court erred in its interpretation of a line in the Citizens United decision, a mistake that unleashed a flood of money into elections that the Supreme Court never intended. “The situation left in place by SpeechNow.org is one that Congress never enacted and people would never support,” Tribe said. “The law permits a very severe limit on the amount an individual can give to someone’s campaign, but at the same time that could be evaded by giving millions to super PACs. . . . The Supreme Court never approved anything like that.”

In a landmark victory for Harvard and affirmative action supporters across the nation, the Supreme Court rejected a challenge to race-conscious admissions policies in a 4-3 vote...Thursday’s ruling is a “decisive victory” for Harvard, Law professor Laurence H. Tribe ’62 said, adding that the decision is “favorable to what Harvard has tried to do over the years to overcome racial stereotypes.”“Our affirmative action program and others like it will of course continue to be the targets of litigation, some of it well intended, but those creating and administering such programs will now be able to point to what amounts to a clear blueprint for their design and defense,” Tribe wrote in an email.

Many Massachusetts colleges and universities are pleased by Thursday's U.S. Supreme Court ruling upholding the use of race as a factor in college admissions. But that doesn't mean that the legal fight about race conscious admissions decisions is over. Perhaps the Massachusetts school most closely watching this case was Harvard University. It's facing a separate lawsuit alleging that its admissions policies discriminate against Asian Americans. Some say Thursday's high court ruling is going to affect that suit. "I can hear the death knell of that lawsuit," said Harvard law professor Laurence Tribe. Tribe, who is advising the school on that suit, says the Supreme Court ruling bolsters Harvard's argument that race is one of several factors that schools should consider in admissions decisions.

The Supreme Court on Thursday rejected a challenge to a race-conscious admissions program at the University of Texas at Austin, handing supporters of affirmative action a major victory....Supporters of affirmative action hailed the decision as a landmark. “No decision since Brown v. Board of Education has been as important as Fisher will prove to be in the long history of racial inclusion and educational diversity,” said Laurence H. Tribe, a law professor at Harvard, referring to the Supreme Court’s 1954 decision striking down segregated public schools.

The Supreme Court on Thursday upheld the University of Texas’s consideration of race in its admissions policy, handing a victory to supporters of affirmative action in a case closely watched by universities in Massachusetts and across the country...“The decision means that race-conscious affirmative action programs in higher education, like the one Harvard University has, for example, will be upheld as long as they follow the court’s guidelines of avoiding crude racial quotas,” and are finely tuned, said Laurence H. Tribe, a professor of constitutional law at Harvard Law School. If the court had ruled the other way, he said, it could have ended any consideration given to race in college admissions. Instead, he said, the court “rendered a huge national reprieve for racial inclusion.”

Relieving fears at Harvard and elsewhere that it might strike down the use of race in admissions, the U.S. Supreme Court today upheld the University of Texas (UT) at Austin’s affirmative action program in the case Fisher v. University of Texas at Austin...Paul professor of constitutional law Tomiko Brown-Nagin called the decision “a stunning win for the University and a reversal of fortune for affirmative action’s detractors.” Laurence Tribe, Loeb University Professor and professor of constitutional law, commented that, "Today’s decision in Fisher v. Texas means that race-conscious affirmative action programs in higher education will be upheld as long as they follow the Court's guidelines for avoiding crude racial quotas and for fine-tuning those programs over time on the basis of intelligently articulated educational philosophies targeting the many dimensions of diversity, as Harvard’s programs of affirmative action have taken great care to do.